62001O0080

1. Preliminary rulings - Question to which the answer may be clearly deduced from the Court's existing case-law - Application of Article 104(3) of the Rules of Procedure

(Rules of Procedure of the Court of Justice, Art. 104(3))

2. Tax provisions - Harmonisation of laws - Excise duties - Directives 92/12 and 92/81 - Mineral oils - Procedures for the levying and collection of duty - Power of Member States subject to non-discrimination - Refusal by a Member State to reimburse an excise duty paid by a trader where the customer of such a trader fails to make payment - Whether permissible

(EC Treaty, Article 3(a) and (b) (now, after amendment, Art. 3(1)(a) and (b) EC; Council Directives 92/12, first recital and Art. 3(2), and 92/81)

In Case C-80/01,

REFERENCE to the Court under Article 234 EC by the Tribunal d'instance de Châteauroux (France) for a preliminary ruling in the proceedings pending before that court between

Michel SARL

and

Recettes des douanes,

on the interpretation of Article 3(a) and (b) of the EC Treaty (now, after amendment, Article 3(1)(a) and (b) EC), the first recital in the preamble to, and Article 3(2) of, Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products (OJ 1992 L 76, p. 1), and the sixth and eighth recitals in the preamble to Council Directive 92/81/EEC of 19 October 1992 on the harmonisation of the structures of excise duties on mineral oils (OJ 1992 L 316, p. 12),

THE COURT (First Chamber),

composed of: P. Jann, President of the Chamber, L. Sevón and M. Wathelet (Rapporteur), Judges,

Advocate General: S. Alber,

Registrar: R. Grass,

after hearing the Opinion of the Advocate General,

makes the following

Order

1 By judgment of 26 January 2001, received at the Court on 16 February 2001, the Tribunal d'instance de Châteauroux referred to the Court for a preliminary ruling under Article 234 EC a question on the interpretation of Article 3(a) and (b) of the EC Treaty (now, after amendment, Article 3(1)(a) and (b) EC), the first recital in the preamble to, and Article 3(2) of, Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products (OJ 1992 L 76, p. 1), and the sixth and eighth recitals in the preamble to Council Directive 92/81/EEC of 19 October 1992 on the harmonisation of the structures of excise duties on mineral oils (OJ 1992 L 316, p. 12).

2 That question arose in a dispute between Michel SARL, which carries on business as a trader in petroleum products, and the Recettes des douanes (authority responsible for the receipt of customs duties) concerning reimbursement of an amount of domestic duty on petroleum products (hereinafter the TIPP) which the aforementioned company paid and which it could not recover when its customers failed to make payment.

Community legal framework

3 Article 3(a) and (b) of the Treaty provide:

For the purposes set out in Article 2, the activities of the Community shall include, as provided in this Treaty and in accordance with the timetable set out therein:

(a) the elimination, as between Member States, of customs duties and quantitative restrictions on the import and export of goods, and of all other measures having equivalent effect;

(b) a common commercial policy.

4 According to the first recital in the preamble to Directive 92/12, the establishment and functioning of the internal market require the free movement of goods, including those subject to excise duties.

5 Article 3(1) and (2) of Directive 92/12 provide:

1. This Directive shall apply at Community level to the following products as defined in the relevant directives:

- mineral oils,

- alcohol and alcoholic beverages,

- manufactured tobacco.

2. The products listed in paragraph 1 may be subject to other indirect taxes for specific purposes, provided that those taxes comply with the tax rules applicable for excise duty and VAT purposes as far as determination of the tax base, calculation of the tax, chargeability and monitoring of the tax are concerned.

6 Under Article 5(1) of Directive 92/12:

The products referred to in Article 3 (1) shall be subject to excise duty at the time of their production within the territory of the Community as defined in Article 2 or of their importation into that territory.

"Importation of a product subject to excise duty" shall mean the entry of that product into the territory of the Community, including the entry of such a product from a territory covered by Article 2(1), (2) and (3) or from the Channel Islands.

However, where the product is placed under a Community customs procedure on entry into the territory of the Community, importation shall be deemed to take place when it leaves the Community customs procedure.

7 Article 6 of Directive 92/12 provides:

1. Excise duty shall become chargeable at the time of release for consumption or when shortages are recorded which must be subject to excise duty in accordance with Article 14(3).

Release for consumption of products subject to excise duty shall mean:

(a) any departure, including irregular departure, from a suspension arrangement;

(b) any manufacture, including irregular manufacture, of those products outside a suspension arrangement;

(c) any importation of those products, including irregular importation, where those products have not been placed under a suspension arrangement.

2. The chargeability conditions and rate of excise duty to be adopted shall be those in force on the date on which duty becomes chargeable in the Member State where release for consumption takes place or shortages are recorded. Excise duty shall be levied and collected according to the procedure laid down by each Member State, it being understood that Member States shall apply the same procedures for levying and collection to national products and to those from other Member States.

8 The sixth and eighth recitals in the preamble to Directive 92/12 are worded as follows:

Whereas, however, it is appropriate to permit Member States to apply on an optional basis certain other exemptions or reduced rates within their own territory where this does not give rise to distortions of competition;

...

Whereas it is necessary to provide for a review procedure for all the exemptions or reduced rates provided for in this directive in order to monitor their continued compatibility with the proper functioning of the internal market.

9 According to Article 1 of Directive 92/81:

1. Member States shall impose a harmonised excise duty on mineral oils in accordance with this Directive.

2. Member States shall fix their rates in accordance with Directive 92/82/EEC on the approximation of the rates of excise duty on mineral oils.

10 According to Article 2(1) and (2) of Directive 92/81:

1. For the purposes of this Directive "mineral oil" shall cover:

...

2. Mineral oils other than those for which a level of duty is specified in the rates by Directive 92/82/EEC shall be subject to excise duty if intended for use, offered for sale or used as heating fuel or motor fuel. The rate of duty to be charged shall be fixed, according to use, at the rate for the equivalent heating fuel or motor fuel.

The main proceedings and the question submitted for a preliminary ruling

11 From 1996 to 1998, the claimant in the main proceedings purchased petroleum products from suppliers. It paid the TIPP to them at that time. The applicant in the main proceedings expected to recover that duty from two of its customers, but the winding-up of those customers by court order made such recovery impossible.

12 The claimant in the main proceedings brought an action against the Recettes des douanes before the court making the reference seeking reimbursement of FRF 254 986.46, representing the amount of the TIPP which it had paid.

13 The claimant in the main proceedings submits that the nature of the charge is altered if the trader is required definitively to bear the TIPP in the event that its customers fail to pay. That charge ceases to be a tax on consumption without becoming a general tax inasmuch as it is chargeable only in the event of non-payment. Since it does not pursue any specific purpose, within the meaning of Article 3(2) of Directive 92/12, such a new tax is contrary to Community law.

14 Moreover, German legislation, in contrast to French law, provides for reimbursement of excise duty in similar cases. Such divergence in treatment hinders the free movement of goods.

15 It is in those circumstances that the Tribunal d'instance de Châteauroux decided to stay proceedings and to refer the following question for a preliminary ruling:

Must Article 3(a) and (b) of the Treaty of Rome, the first recital in the preamble to, and Article 3(2) of, Directive 92/12 of 25 February 1992 on the general arrangements for products subject to excise duty, and the sixth and eighth recitals in the preamble to Directive 92/81 of 19 October 1992 on the harmonisation of the structures of excise duties on mineral oils be interpreted as precluding the French Republic from refusing to reimburse the domestic duty on petroleum products (TIPP) paid by a trader in petroleum products following the failure by one of his customers to make payment?

The question submitted for a preliminary ruling

16 It must be stated that the answer to the question submitted for a preliminary ruling may be clearly deduced from existing case-law, so that it is appropriate for the Court, in accordance with Article 104(3) of the Rules of Procedure, to give its decision by reasoned order.

17 So far as concerns Article 3(a) and (b) of the Treaty, it is sufficient to recall that, as the Court held in its judgments in Case C-341/95 Bettati v Safety Hi-Tech [1998] ECR I-4355, paragraph 75, and Case C-9/99 Échirolles Distribution [2000] ECR I-8207, paragraph 22, that article, which determines the fields and objectives to which the activities of the Community are to relate, lays down the general principles of the common market, which are to be applied in conjunction with the respective chapters of the Treaty.

18 In that connection, the purpose of Directive 92/12, which was adopted pursuant to Article 99 of the EC Treaty (now Article 93 EC), as was stated in paragraph 22 of the judgment in Case C-296/95 Emu Tabac and Others [1998] ECR I-1605, is to lay down a number of rules on the holding, movement and monitoring of products subject to excise duty, in particular so as to ensure that chargeability of excise duties is identical in all the Member States.

19 In that regard, it should be noted that the object of Article 6(1) of Directive 92/12 is simply to determine the point in time at which the excise duty becomes chargeable. It is clear from the provisions of Article 6(2) of that directive that, once the duty has become chargeable on account of the release of the product for consumption within the meaning of Article 6(1), it is to be levied and collected in accordance with the procedure laid down by each Member State, subject to the proviso that Member States must apply the same levying and collection procedures to national products and to those from other Member States (Case C-325/99 Van de Water [2001] ECR I-2729, paragraph 38).

20 By ensuring, in Article 6(1) of Directive 92/12, that the rules governing the chargeability of excise duty are the same in all the Member States, the Community legislature was clearly not seeking to harmonise the procedures for the levying and collection of duty by those States. On the contrary, in Article 6(2), it expressly left it to the Member States to determine those procedures, subject to the non-discrimination requirement referred to in paragraph 19 of this order (Van de Water, paragraph 40).

21 It should also be noted that, whilst Article 6 of the directive does not specify the person liable to pay the duty chargeable, it follows from the scheme of the directive that the national authorities must in any event ensure that the tax debt is in fact collected (Van de Water, paragraph 41).

22 It follows from the foregoing considerations that the impossibility for the claimant in the main proceedings to pass on the TIPP to customers, as a result of their liquidation, has no bearing on the nature or the structure itself of the aforementioned tax. Like the procedure for levying and collection, the granting to the person liable to excise duty of a right to reimbursement of the duty in such circumstances is left to the Member States, subject to the non-discrimination rule mentioned in paragraph 19 of this order.

23 In those circumstances, Directive 92/12 does not prevent any disparities in treatment which may result, between Member States, from divergences existing between the laws of the various Member States in the field (see, by analogy, Case 1/78 Kenny [1978] ECR 1489, paragraph 18).

24 As regards the recitals in the preambles to Directives 92/12 and 92/81 referred to in the question submitted for a preliminary ruling, it need only be stated that they constitute very general statements which are not capable of undermining that interpretation of the provisions of Directive 92/12.

25 In view of all the foregoing considerations, the answer to the question submitted for a preliminary ruling must be that Article 3(a) and (b) of the Treaty, the first recital in the preamble to, and Article 3(2) of, Directive 92/12 and the sixth and eighth recitals in the preamble to Directive 92/81 must be interpreted as meaning that they do not preclude a Member State refusing, upon the failure by the customer of a trader in petroleum products to make payment, to reimburse an excise duty such as the TIPP paid by such a trader.

Costs

26 The costs incurred by the French Government and by the Commission, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (First Chamber),

hereby orders:

Article 3(a) and (b) of the EC Treaty (now, after amendment, Article 3(1)(a) and (b) EC), the first recital in the preamble to, and Article 3(2) of, Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products and the sixth and eighth recitals in the preamble to Council Directive 92/81/EEC of 19 October 1992 on the harmonisation of the structures of excise duties on mineral oils must be interpreted as meaning that they do not preclude a Member State refusing, upon the failure by the customer of a trader in petroleum products to make payment, to reimburse an excise duty such as the domestic duty on petroleum products paid by such a trader.